UK: An Overview of Adoption and Employment Law

​Approximately 3,000 children are currently waiting to be adopted in the United Kingdom. The number of adoptions in England alone has fallen by one-third over the past few years, with the COVID-19 lockdowns having made the adoption process more difficult and limited the capability of social services to identify vulnerable cases. An increasing number of potential adopters are also looking to make use of fertility treatments before considering adoption.

This article rounds up the key employment law rights and entitlements that apply to adoptive parents in the U.K.

Adoption, Paternity and Shared Parental Leave

If a couple is adopting, they must designate one parent as the primary adopter for the purposes of leave and pay entitlements. The primary adopter has an entitlement of to up to 52 weeks' statutory adoption leave. There is no longer any qualifying period of service, so adoption leave is a day-one right, just like maternity leave. The other adopter may take statutory paternity leave and both adopters may be eligible to opt into the shared parental leave scheme if they meet the qualifying conditions. 

The primary adopter would need to inform the employer of the intention to curtail the adoption leave to opt into the shared parental leave scheme, in the same way as for employees on maternity leave. If someone is adopting without a second parent, that person is entitled to statutory adoption leave.

Adoption leave can begin on the date a child is placed with the adopter or within 14 days before the date on which the child is expected to be placed.

During adoption leave, an employee is entitled to all terms and conditions of employment except terms that are related to pay.

Adoption Pay

The first six weeks of statutory adoption leave is paid at 90 percent of the employee's normal weekly earnings, with the following 33 weeks being paid at the lower of:

• The prescribed statutory rate of 151.97 pounds (approximately USD 207.58) per week (from April 2021); or
• 90 percent of the employee's normal weekly earnings.

Before 2015, the entire period of 39 weeks was paid at the lower rate, but the position changed in 2015 to bring adoption pay in line with maternity pay. In practice, many employers match any enhancements made in respect of maternity pay so that they have a consistent approach toward both maternity and adoption.

Employees cannot claim multiple adoption pay entitlements if they adopt more than one child as part of the same adoption arrangement. This is consistent with maternity pay as there is no double entitlement for giving birth to twins, but it is particularly relevant for adoptions because, whereas multiple births are relatively unusual, it is relatively common for siblings of different ages to be adopted at the same time.

Adoption leave and pay is available only to parents who adopt through an adoption agency. Employees who adopt a child on a private basis are not eligible for adoption leave or pay.

Fostering to Adopt

In 2015, the right to take adoption leave and pay was extended to include those who are approved for adoption under the "fostering for adoption" scheme. The idea behind the scheme is to reduce unnecessary moves in and out of foster care for the child, as they are placed with new permanent families sooner in the process. Under the extended legal framework, adoption leave can begin as soon as the child is placed with local authority foster parents who are expected to adopt the child.

Surrogacy

Adoption leave and pay rights have also been extended to parents who enter into qualifying surrogacy arrangements. To qualify, parents must be eligible for a parental order in respect of the child, which means that, along with meeting other conditions, one of them must have provided the genetic material that was used to create the embryo.

Adoption Appointments

One relatively recent change is the right for the primary adopter to take paid time off work for up to five adoption appointments. If there is a second adoptive parent, they can take time off for two appointments, but these are unpaid.

Dependents and Parental Leave

Dependent leave is available for an employee who needs to take time off work to help a dependent, which, includes an adoptive child. This is usually taken in an emergency or unexpected situation, generally on a temporary basis until measures can be put in place for a more sustainable solution or until the crisis has been sufficiently managed.

An adoptive parent who has served at a company for over one year may also take parental leave to look after their child up to their 18th birthday. This entitlement is to a maximum of 18 weeks unpaid leave per child. The employee may take up to four weeks per year and it must be in blocks of one week at a time.

Employers should be aware that there is more flexibility for parents of children with disabilities. For example, the parental leave does not need to be taken in blocks of one week. This is particularly important to know in relation to adoptive parents because around 40 percent of children waiting for adoption have an impairment or some form of special need or disability.

The new right to parental bereavement leave, which gives two weeks of paid leave to working parents who lose a child under the 18 years old, also applies to adoptive parents.

Enhanced Rights

Many employers top up the statutory entitlements for birth parents, but what does that mean for adoptive parents? Research shows that over 90 percent of employers ensure that their adoption provisions mirror their maternity packages in terms of leave and pay.

A recent decision of the Employment Appeal Tribunal (EAT) in Price v. Powys County Council supported an employer's policy of enhancing adoption leave pay, but not shared parental pay. The claimant had argued that, while maternity leave might serve various purposes over and above child care (e.g., protecting the mother's health and well-being), adoption leave was purely about child care—meaning that it was discriminatory on grounds of sex to enhance adoption leave pay but not shared parental leave pay.

The EAT, however, ruled that adoption leave was not purely about child care. The purpose of adoption leave was also to form a parental bond and safe environment for the child and in addition there were health and safety reasons for taking adoption leave. The court did not consider that a person taking shared parental leave was in a comparable position to someone taking adoption leave. This case is helpful for employers who are keen to match maternity provision for adoptive parents but are not able to enhance their shared parental leave entitlements.

Lisa Dafydd is an attorney with Lewis Silkin in Cardiff, Wales, U.K. Gemma Taylor is an attorney with Lewis Silkin in London. © 2021 Lewis Silkin. All rights reserved. Reposted with permission of Lexology.